LEGAL UPDATE Court Limits POBR Right to Chosen Representative Government Code section 3303(i) of the Public Safety Officers Procedural Bill of Rights Act (POBR) describes the right of a public safety officer who is the subject of an investigation "to be represented by a representative of his or her choice who may be present at all times during the interrogation." Reading a "reasonableness" requirement into this provision, the Fourth District Court of Appeal has held the right to representation in an administrative interrogation is limited by the employer's interest in proceeding with a discipline investigation. In Upland Police Officers Association v. City of Upland (2003) 111 Cal.App.4th 1294, a southern California attorney twice requested to reschedule an officer's interview to accommodate the attorney's schedule. When the chief of police insisted on proceeding with the interview, another attorney sent a letter demanding the interrogation not go forward. The Department instead proceeded without any representative for the officer. The attorneys challenged the interrogation and the trial court granted an injunction prohibiting the City of Upland from proceeding with interrogations where the representative of the officer's choice was unavailable. The city, along with statewide police management associations, appealed and won. Most associations and officers use attorneys to represent them in discipline matters. In Upland, the court likened the POBR right to representation to the right to an attorney held by a criminal defendant. Just as a defendant has no absolute right to a particular attorney, the court said, a peace officer subject to interrogation cannot stymie the investigation by refusing to be questioned until his chosen representative is available. "The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation." The Upland decision makes communication - but not necessarily cooperation - between the attorney, his peace officer client, and the investigating agency critical. Whether by MOU provision, letter of agreement or other means, associations should consider adopting a protocol or other mechanism for enforcing the right to a chosen representative by restricting the circumstances in which an interrogation may proceed without a representative present. San Francisco Officers Enjoin Disclosure of Urine Test Results Fearing the San Francisco County District Attorney would disseminate information he received from their confidential peace officer personnel files, Alex Fagan Jr., Matthew Tonsing and David Lee obtained a protective order prohibiting the prosecutor from disclosing administrative urinalysis test results to the public. The First District Court of Appeal, ruling in Fagan v. Superior Court (2003) 111 Cal.App.4th 607, upheld the prosecutor's right to obtain the information but prohibited its dissemination. The Fagan decision interprets two statutes governing peace officer personnel records. Penal Code section 832.7 allows prosecutors to obtain the confidential personnel files of peace officers who are accused of criminal misconduct. The district attorney, grand jury, and attorney general all are allowed to review the files without filing a Pitchess motion because the interest in successful prosecution is deemed to outweigh the officer's conditional privacy right in the records. Disclosure of those same records, however, falls under Evidence Code sections 1043 and 1045; i.e., the Pitchess procedure. In the Fagan case, the District Attorney and several media outlets argued the records, once obtained by the prosecutor, were no longer confidential and could be disclosed to the public at will. The court held, however, consistent with current California law regarding Pitchess/Brady discovery, that even the prosecutor must comply with Pitchess before confidential peace officer personnel records may be admitted into evidence and thereby made public. Racial Profiling Program Held Subject to "Meet and Confer" Rejecting a police department's claim its racial profiling tracking program was a "management prerogative," the Second District Court of Appeal in Los Angeles has held a new policy requiring officers to complete a lengthy form on each traffic stop was a change in the "terms and conditions of employment" subject to meet and confer. The decision in Claremont Police Officers Assn. v. City of Claremont (2003) 2003 DJDAR 11335 revoked the racial stop program and ordered the city to meet and confer with the association before implementing any policy. Negotiations over changes in the terms and conditions of employment for public sector employees in California, including peace officers, are governed by the Meyers-Milias-Brown Act (MMBA). The MMBA requires public agencies to meet and confer in good faith with a recognized bargaining unit before making changes to terms and conditions of employment affecting the members of that unit. Only those matters which are strictly managerial, e.g., fundamental policy decisions, are outside the scope of collective bargaining. In the Claremont case, the court determined the adoption of a racial data tracking program was a "fundamental policy decision," but held implementation of the policy was subject to bargaining. The information officers were required by the program to gather could be used to affect promotions, disciplinary actions, the officers' relations with the public, and overall job security. Therefore, the court wrote, the racial data program could not be implemented until the city met and conferred with the POA. POBR Statute of Limitations Trumps City Rules In a decision interpreting the one-year statute of limitations on peace officer disciplinary actions, the Second District Court of Appeal held Government Code section 3304(d), not City of Los Angeles personnel rules, controls when an administrative complaint must be dismissed. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899.) The court rejected a city rule that conditioned the statute of limitations on notification to the chief of police. An LAPD officer reported threatening statements made by another officer, Johnny Jackson, to his supervisor on March 25, 1999. Another officer reported similar statements by Jackson to another supervisor a couple of days later. The comments were not reported to an internal affairs investigator until April 12, 1999, when the investigator prepared a written report of allegations against Jackson. But no notice of proposed discipline was issued by the police chief until March 31, 2000. The first issue was whether Los Angeles, a charter city, could have a different statute of limitations than the limitations period imposed by the POBR. Los Angeles city rules provided for a one-year statute of limitations starting from the date the police chief was notified of the misconduct; i.e., April 12, 1999, in Jackson's case. The court rejected the city rule, holding the POBR trumps local rules because it addresses a matter of statewide, not just local, concern: the minimum due process to be afforded peace officers in California. The second issue in Jackson was whether the sergeant who first learned of the incident was a person authorized to start an investigation. Government Code section 3304(d) provides, subject to several exceptions, that no punitive action may be taken against a public safety officer unless the matter is investigated and discipline proposed within one year of the date "a person authorized to initiate an investigation of the allegation" discovers the conduct. The court held the sergeant who learned of the conduct two days after the first report had a duty to start an investigation. The POBR limitations period applied, prohibiting disciplinary action against the officer for the reported allegations.